YOUR “RISING STARS” JUST GOT SHOT DOWN
Lawyer advertising that use phrases such as “Super Lawyers™”, “Rising Stars™”, “Best Lawyers™”, “Best Law Firms™”, “America’s Leading Lawyers™”, “Top Ranked™” or other similar phrases, just took a hit, and in of all places, New Jersey. It seems that the number of complaints by other lawyers about those advertising such laurels and accomplishments not being worthy of such titles resulted in a May 4, 2016 Notice to the Bar from the New Jersey Supreme Court Committee on Attorney Advertising. These coveted badges, icons and logos appear on letter head, business cards and websites. It seems like a day does not pass without receipt of an email offering me the opportunity to be named the “Best Premises Liability Lawyer in Oklahoma” on someone’s list. However, a drawback has been that I can never figure out whether the price quoted was in euros, pounds, sterling or some other monetary denomination I was unfamiliar with and whether the publisher of this accolade was indeed going to publish it in the United States at all. I have even had similar discussions with lawyers who are under the misconceived notion that they are the only lawyer that is receiving such emails.
Putting all practical concerns about how to spend your marketing dollars aside, and there are many ways to do that, there is the ever present ABA Model Rule 7.1 to govern our choices:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. 
The ABA Eye On Ethics, July 2016 blog article deals with the issue of LinkedIn and what a lawyer should do when a client, former client, friend, family member or competitor rates you for a skill which you in fact do not have. This should be cause for concern for all of us to go review the reviews we receive. I readily admit I do not practice in certain areas of law and would be shocked if someone gave me a high rating for those skills on any website. However, in this article we are dealing with the issues of the super and the not so super.
The business of lawyer advertising has trended upward exponentially with the use of the internet. Consequently, we should not be surprised that many of the selection businesses for honors and accolades are owned by the same company that wants to market and build your website, blogs, electronic newsletters. Some may recall these companies started out in lawyer advertising by selling law firms and lawyers top placement on web searches and quick response buttons.
I must confess that I trumpet my honors and accolades on my web page and pay the piper to do so. A quick web site search of Oklahoma law firms in all types of practices, small and large alike, reveals that everyone else seems to be doing the same thing. Here is the rub, what do the public consumers of professional services believe when they see this advertising portrayed as an honor? In order to protect against misrepresentation, we fall back on ABA Model Rule 7.1. The Oklahoma corollary contains the same language. Interestingly, New Jersey’s version of the rule contains an official comment requiring:
As a preliminary matter, a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer’s services to other lawyers’ services must first ascertain where the organization conferring the award has made “inquiry into attorney’s fitness. The rating or certifying methodology must have included inquiry into the lawyer’s qualifications and considered those qualifications in selecting the lawyer for inclusion.” This inquiry into the lawyer’s fitness must be more rigorous than a simple tally of the lawyer’s years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1(a)(3)(ii), the basis for the comparison must be substantiated, bona fide and verifiable.
Oklahoma does not have comparable commentary but does include comments concerning the prohibition against misleading but truthful statements or truthful reports. Oklahoma also contemplates a disclaimer but does not provide required elements. However, the New Jersey trend may be coming to all states as the need for rational limits seems to raise its head. Consequently, vetting the awarding organization that has chosen you or your firm before you give them a check makes sense. New Jersey adds additional steps, once this has been verified, you then need to display beside your badge, icon or referred to honor in close proximity to the reference a description of the standard or methodology of which the award is based, the name of the comparing organization and finally a disclaimer that no aspect of this advertisement has been approved by the Supreme Court of New Jersey.
So for the time being, you are safe to squander your budget as you wish. However, pay close attention to future guidance issued by the General Counsel’s office and OBA. Since we don’t practice in New Jersey, I am not aware of what gave rise to the ground swell of complaints that some lawyers weren’t super, rising, best or leading. It could have been one of several reasons, such as; (1) those who simply did not have the money to advertise those accolades; (2) those who were jealous for being over looked for honors; or (3) legitimately complaining that those receiving honors were not worthy. Until the Oklahoma lawyer advertising ethics landscape changes, we will be pursuing those badges, icons and logos with the rest of you; it is sort of like pursuing stars, points and miles except that you don’t get a free trip, free room or free latte and maybe not even a new client. But I did find a Pokemon in the parking lot.
- New Jersey Bar Assoc. Advertising Committee available at www.judiciary.state.nj.us/notices/2016/n160518a.pdf, 2016-07-14.
- ABA Model Rule 7.1
- www.americanbar.org/publications/youraba/2016/july-2016/endorsements-on- social- media-websites
- Okla. Stat. tit.5, App. 3-A §Rule 7.1 (2008)
- http://www.judiciary.state.nj.us/ notices/2016/n160518a.pdf
- Okla.Stat.tit.5 App 3-A§ Rule 7.1 (2008), supra at comments 2 & 3
- New Jersey Assoc., Supra.
Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email firstname.lastname@example.org, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.